Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA091503, Robert J. Higa, Judge.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Patricia Gonzalez, appeals from her convictions for: misdemeanor trespassing (Pen. Code, § 602.5, subd. (a)); felony assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)); and misdemeanor assault. (§ 240.) Defendant argues: there was insufficient evidence to support her conviction for assault by means likely to produce great bodily injury; the trial court improperly sentenced her to a concurrent term for trespassing; and she is entitled to additional presentence credits. The Attorney General argues the trial court improperly stayed the prior prison term enhancement and should have imposed additional court security fees. We reverse in part and affirm in part with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Sixteen-year-old Amber J. lived with her brother, Jerod Coban, in Bellflower on September 10, 2005. Amber’s mother also lived with them. At approximately 4 a.m., Mr. Coban and Amber were awakened by pounding on their front door. Mr. Coban opened the door. Defendant then pushed the door open. Defendant asked for Mr. Coban’s mother. Mr. Coban responded that his mother was not present. Defendant then punched Mr. Coban in the face. Defendant was accompanied to Mr. Coban’s home by: Heather Moller; Carlos Avila; Jessica Murillo; and Adrian Felix. Ms. Murillo was defendant’s sister. Defendant was married to Mr. Felix. Defendant pushed Mr. Coban into the back room. Ms. Murillo ran directly to Mr. Coban’s bedroom. Ms. Murillo found Melissa Rivera asleep in Mr. Coban’s bedroom. Ms. Murillo pulled on Ms. Rivera’s hair. Mr. Coban pushed past the others into the bedroom.
Amber fled to Mr. Coban’s bedroom when she heard the pounding on the door. Mr. Coban stood in front of Amber. Defendant said, “‘There’s that little bitch.’” Defendant reached over Mr. Coban and punched Amber in the head. Mr. Coban pushed Amber into the closet. Ms. Murillo got on top of Ms. Rivera. Ms. Murillo banged Ms. Rivera’s head on the floor. Defendant punched Ms. Rivera in the head. Mr. Coban pulled Ms. Murillo off Ms. Rivera. Mr. Coban was then hit on the back of the head. Mr. Coban fell to the floor. Mr. Coban was then kicked in the eye. Mr. Coban tucked his face in. Someone kicked him in the head and sides. Someone stomped on Mr. Coban’s back. Mr. Coban did not see who kicked him. But, the only other person in the room other than Ms. Murillo and defendant was Mr. Felix. Mr. Coban was also kicked in the back of his neck. Mr. Coban lost consciousness briefly.
When Ms. Rivera awoke, Ms. Murillo was yelling at her. Ms. Murillo called her a “nigger” and yelled that Ms. Rivera was from Compton. Defendant came into the room. When defendant began hitting Ms. Rivera, she said, “‘Oh, don’t fuck with my sister.’” Defendant hit Ms. Rivera with her fist in the head. Ms. Murillo then began hitting Ms. Rivera. Ms. Rivera ended up fighting on the floor with Ms. Murillo. When Mr. Coban was able to pull Ms. Murillo away, Ms. Rivera went into the closet with Amber.
Thereafter, Ms. Murillo, defendant, and the two men in the room surrounded Mr. Coban. All four of them repeatedly kicked Mr. Coban. Ms. Rivera and Amber were ultimately able to pull Mr. Coban into the closet area. Defendant followed and kicked Mr. Coban again. Defendant and her companions then left the house. Sixteen-year-old Christine R. was at Amber’s home on September 10, 2005. Christine went to Mr. Coban’s room when the incident occurred. Mr. Felix and another man blocked Christine’s way at the bedroom door. However, Christine saw defendant talking to Mr. Coban and Ms. Murillo yelling at Ms. Rivera. Christine saw Ms. Moller and Mr. Avila near the front door. After the assailants had left, Mr. Coban called his mother. Mr. Coban’s mother told him that she was on her way home and would call the police when she arrived.
A short time later, defendant and others began banging on the door again. Defendant said: “‘I’m back. Come back out and fight.’” Mr. Coban decided not to answer the door. Mr. Coban called the police. Mr. Coban heard the sound of shattering glass as defendant left. Mr. Coban later discovered that the windshield of Ms. Rivera’s car had been shattered.
Following the incident, Ms. Rivera had a mark on her face at her jaw line, bruises on her head and arm, a “busted” lip, and head pain. Mr. Coban suffered: cuts and scratches to his face; a cut above an eye; bruises to his left shoulder; and neck pain. His left eye was bruised and swollen. Amber had a bump on her head. The bump on the head resulted from being punched by defendant.
Approximately one or two weeks before the incident occurred, Mr. Coban, Amber, Mr. Avila, Ms. Moller, Ms. Murillo and others were at Ms. Rivera’s home. The group became loud. Ms. Murillo was described as “kind of plowed” and acting in a “rowdy” manner. Ms. Rivera asked them to be quiet. An argument between Ms. Rivera and Ms. Murillo resulted in a fight. Ms. Rivera asked Ms. Murillo to leave. Ms. Murillo called Ms. Rivera “nigger.” Amber told Ms. Murillo not to be disrespectful to Ms. Rivera. Ms. Murillo said: “‘Oh, well, you better watch your back, too. If you want to fight me, you better watch your back in the streets.’” After that incident, Mr. Coban received a message from Ms. Murillo. Mr. Coban testified as to the message as follows, “She called me and left a message saying I was immature for doing something and that I better watch my back and I’m going to get mine, so I called her back, and she said I egged her house.” Mr. Coban had not egged Ms. Murillo’s house.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence to support her conviction for assault by means likely to produce great bodily injury on Mr. Coban. Defendant asserts the force used against Mr. Coban in the form of a punch or a kick was insufficient to satisfy the “likely to produce great bodily injury” element. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Section 245, subdivision (a)(1) provides in part, “Any person who commits an assault upon the person of another . . . by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison . . . .” The California Supreme Court has held: “Numerous cases have held that whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide. [Citations.]” (People v. Sargent (1999) 19 Cal.4th 1206, 1221; People v. Aguilar (1997) 16 Cal.4th 1023, 1029 [“In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.”]; People v. Russell (2005) 129 Cal.App.4th 776, 787; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; People v. Duke (1985) 174 Cal.App.3d 296, 303; People v. Kinman (1955) 134 Cal.App.2d 419, 422 [“‘Whether a fist would be likely to produce such injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied.’”].) Our colleagues in Division Seven of this appellate district have explained: “‘“Likely” means “probable” or . . . “more probable than not.”’ Penal Code, section 245 ‘prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury [and though] the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.’” (People v. Russell, supra, 129 Cal.App.4th at p. 787, original italics, fn. omitted; see also People v. Aguilar, supra, 16 Cal.4th at p. 1028; People v. Muir (1966) 244 Cal.App.2d 598, 604.)
There is substantial evidence that the requisite force was used against Mr. Coban. Defendant immediately punched Mr. Coban in the head when she forced her way into his home. Mr. Coban came to the aid of Ms. Rivera. Thereupon Mr. Coban was surrounded by defendant and the three other assailants. Mr. Coban was kicked repeatedly in the head, neck, and body for two minutes. Mr. Coban estimated he was kicked at least 20 times. After Mr. Coban lost consciousness, he was pulled into the closet by Amber and Ms. Rivera. As they did so, defendant again kicked Mr. Coban. There was substantial evidence from which a reasonable juror could conclude defendant used force likely to cause great bodily injury.
B. Instructional Error
Defendant argues the jury was not instructed on the “personal use of force in a multi-person assault” context. Defendant acknowledges, “[T]he jury was correctly instructed that the victim of felony assault need not have actually suffered an injury, only that the manner of assault was likely to produce great bodily injury.” However, defendant did not request such instructions nor seek clarification of those which were read to the jury. She has therefore forfeited the issue on appeal. (People v. Coddington (2000) 23 Cal.4th 529, 584, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Padilla (1995) 11 Cal.4th 891, 971, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Hawkins (1995) 10 Cal.4th 920, 952, overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Saille (1991) 54 Cal.3d 1103, 1118-1120.) Moreover, any such error was harmless. As the Attorney General notes, had the jurors been instructed pursuant to a theory akin to CALJIC No. 17.20, which applies to section 12022.7 great bodily injury allegations, it could have clarified matters; but only to defendant’s detriment. Thus, any error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 492-504; Chapman v. California (1967) 386 U.S. 18, 22.)
C. Sentencing
1. Imposition of concurrent term for trespassing conviction
Defendant argues that the trial court improperly imposed a separate concurrent term for trespassing in violation of section 654, subdivision (a). We disagree. We review the trial court’s order imposing multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband, supra, 13 Cal.4th at pp. 730-731; People v. Downey (2000) 82 Cal.App.4th 899, 917; People v. Oseguera (1993) 20 Cal.App.4th 290, 294; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) In conducting the substantial evidence analysis we view the facts in the following fashion: “We must ‘view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ (People v. Holly (1976) 62 Cal.App.3d 797, 803.)” (People v. McGuire (1993) 14 Cal.App.4th 687, 698; see also People v. Green (1996) 50 Cal.App.4th 1076, 1085.) Multiple criminal objectives may divide those acts occurring closely together in time. (People v. Hicks (1993) 6 Cal.4th 784, 788-789; People v. Harrison (1989) 48 Cal.3d 321, 336; People v. Davey (2005) 133 Cal.App.4th 384, 390.)
Section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more that one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
In this case, defendant forced her way into Mr. Coban’s home, striking him in the head while doing so. This act constituted the trespass. Defendant then proceeded to the bedroom to locate Ms. Rivera. Defendant said, “‘Oh, don’t fuck with my sister.’” Defendant presumably intended to avenge the alleged slights to Ms. Murillo. Ms. Murillo is defendant’s sister. It was only when Mr. Coban sought to defend his sister, Amber, and Ms. Rivera that defendant again assaulted him by kicking him along with three others present. Defendant then individually kicked defendant after he was unconscious. Defendant had an opportunity to reflect on her actions before initiating the aggravated assault against Mr. Coban. The trial court could reasonably find that the trespassing was separate and distinct from the assault with force likely to cause great bodily injury and impose separate sentences as to each offense. If this were a burglary case where the underlying felony was the aggravated assault, the result would be different. But this is a trespassing and aggravated assault case and the absence of a burglary conviction materially changes the matter.
2. Court security fees
Following our request for further briefing, the Attorney General argues the trial court should have imposed a $20 section 1465.8, subdivision (a)(1) court security fee as to each of the three counts for which defendant was convicted. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one court security fee. As a result, two additional section 1465.8, subdivision (a)(1) fees must be imposed.
3. Section 667.5, subdivision (b) enhancement
The Attorney General argues the trial court improperly stayed the enhancement on one prior prison term pursuant to section 667.5, subdivision (b). We agree. The trial court had jurisdiction only to impose or strike the section 667.5, subdivision (b) enhancement pursuant to section 1385, subdivision (a). (§ 12; People v. Bradley (1998) 64 Cal.App.4th 386, 390-392; People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589; People v. Floyd P. (1988) 198 Cal.App.3d 608, 612; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122-1124; People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 537, disapproved on other grounds in People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3; People v. Santana (1986) 182 Cal.App.3d 185, 190-191; see People v. Alexander (1992) 8 Cal.App.4th 602, 604.) The imposition of a legally unauthorized sentence is an issue that can be raised for the first time on appeal by the Attorney General. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; People v. Scott (1994) 9 Cal.4th 331, 354; People v. Welch (1993) 5 Cal.4th 228, 235; People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; In re Ricky H. (1981) 30 Cal.3d 176, 191; People v. Davis (1981) 29 Cal.3d 814, 827 & fn. 5; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; In re Sandel (1966) 64 Cal.2d 412, 414-418.) As a result, upon issuance of the remittitur, the trial court is to either strike or impose the section 667.5, subdivision (b) enhancement. If the trial court decides to strike the section 667.5, subdivision (b) enhancement, it must do so in full compliance with all of the requirements of section 1385, subdivision (a).
4. Presentence Credits
Defendant argues and the Attorney General concedes that she is entitled to additional presentence credits. We agree. Defendant was in continuous custody from September 22, 2005, until she was sentenced on December 5, 2006. As a result, she is entitled to presentence credits for 440 days actual custody and 220 days of conduct credits for a total of 660 days. (§§ 2900.5, subd. (a), 4019.) The failure to award a proper amount of credits is a jurisdictional error which may be raised at any time. (People v. Karaman, supra, 4 Cal.4th at pp. 345-346, fn. 11, 349, fn. 15; People v. Serrato, supra, 9 Cal.3d at pp. 763-765.) The trial court is to personally insure the abstract of judgment is corrected to full comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the award of presentence custody credits of 660 days which include 220 days of conduct credits and, the imposition of two additional court security fees. The matter is remanded to allow the trial court to either strike or impose the Penal Code section 667.5, subdivision (b) prior prison term enhancement. Upon resentencing, the superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: MOSK, J. KRIEGLER, J.